Acts/Rules/Orders:

Constitution of India - Article 12, Constitution of India - Article 15(1), Constitution of India - Article
15(3), Constitution of India - Article 29, Constitution of India - Article 29(2)
Cases Referred: King v. Benchers of Lincoln's Inn, (1825) 107 E.R. 1277; United States of America v.
Classic, (1941) 85 Law Ed. 1368; Screws v. United States, (1945) 89 Law Ed. 1495; Ex parte:
Commonwealth of Virgina, (1880) 25 Law Ed. 676; Missouri Ex rel Gaines v. Canada, (1939) 83 Law Ed.
208; Sipuel v. University of Oklahoma, (1948) 92 Law Ed. 247; Sweatt v. Painter, (1950) 94 Law Ed. 1114;
Mclaurin v. Oklanoma S. Regents, (1950) 94 Law Ed. 1149; People Ex Rel Tinkoff v. North Western
University, (1948) 93 Law Ed. 383; North Western University v. People, (1879) 25 Law Ed. 387; Norris v.
Marjor & City Council of Baltimore, 78 F. Supp. 451 (D. Md. 1948); Kerr v. Enoch Pratt Free Library,
149 F. 2 d. 212 (4th Cir. 1945); Anjali v. State of West Bengal, AIR 1952 Cal 822; Plessy v. Perguson,
(1896) 41 Law Ed. 256; Berea College v. Commonwealth of Kentucky, (1908) 53 Law Ed. 81; Cong Lum
v. Rice, (1921) 72 Law Ed. 172
Overruled / Reversed by:
Maharashtra State Electricity Board, Engineer's Association, Nagpur, through its Chairman and Ors. vs.
Maharashtra State Electricity Board, through the Secretary and Anr.,
MANU/MH/0174/1968MANU/MH/0174/1968; Umesh Chandra Sinha vs. V.N. Singh and Ors.,
MANU/BH/0002/1968MANU/BH/0002/1968 Disposition:
Appeal allowed Case Note:
Constitution of India--Articles 12, 15 (1) and 29(2)--Scope of-- Admission to colleges--Article 29 (2)
governs women students--Refusal of admission--Direction by University to give certain facilities before
admission--Not discriminatory --University not "local or other authority" within Article 12--Difference
between State aided and State maintained institutions
The Indian Constitution has recognized the distinction between the State-maintained institutions and
State-aided institutions. Educational institutions will come within the purview of Article 15(1) only if they
are State-maintained, and not otherwise. The omission of the word "sex" in Article 29(2) of the
Constitution is a deliberate departure from the language of Article 15(1) and its object must have been to
leave it to the educational authorities to make their own rules, suited to the conditions and not to force on
them an obligation to admit women.
The University of Madras, which is a body corporate created by the Madras University Act (VII of 1923)
is not a "local or other authority", within the meaning of Article 12 of the Constitution. It is only a State-
aided institution, whose purpose is purely to promote education.
A direction given by the University that the colleges affiliated to it should provide certain facilities for
women before they can be admitted, cannot be said to be discriminatory on the ground of sex and is,
therefore, not void. In fact, there is no regulation refusing admission to women students. The regulations
are only addressed to the colleges and it is the colleges are only addressed to the colleges and it is the
colleges that are refused permission to admit women when they do not provide sufficient facilities.
JUDGMENT
1. This is an appeal by the University of Madras against the judgment of Subba Rao J. in W.P. No. 341 of
1951 and the point for determination is whether the directions issued by the appellant to the affiliated
colleges not to admit girl students without obtaining the permission of the Syndicate are valid. For a
correct appreciation of the true scope and significance of those directions, it is necessary to state the
conditions under which they came to be given. Until recently, the number of girl students who sought
higher education in the colleges was inconsiderable and the women's colleges that were in existence were
quite ample to provide for their needs. Latterly there has been a large increase in their number and as the
existing women-colleges were not sufficient to accommodate them, colleges which were admitting only
boys also began to admit girls. Co-education became so general that by 1943 the Syndicate considered it
desirable to frame certain rules for regulating the admission of women students in such mixed colleges.
Women could be admitted only with the prior sanction of the Syndicate and the maximum number that
could be admitted was fixed by the Syndicate on the basis of the amenities and facilities such as separate
hostel, playgrounds and the like provided by the college. In 1945 a Commission was appointed in
accordance with Section 16 (12) of the Madras University Act to report on the state of higher education
and its progress in the State of Madras. The Commission went into the question of women's education
and set out its views in Chapter VIII of the report. It noted with gratification that the education of women
had advanced rapidly in recent years' and observed that notwithstanding the increase in the number of
women's colleges "they have been unable to accommodate the rapidly increasing number of applicants
seeking collegiate education in every branch." Next, after referring to the Rules prescribed by the
Syndicate in 1943, the report went on to state that most colleges have not attempted anything more than a
nominal compliance with the conditions imposed by the University with regard to common rooms,
recreational facilities etc. On the whole, the life of women students in these colleges is handicapped, the
atmosphere of freedom necessary for their natural development is lacking as the bulk of the students and
almost the whole of the staff ere men. In addition to this it becomes necessary to impose many restraints
for the sake of discipline. It is the unanimous opinion of the Commission that men's colleges should be
precluded from admitting women to the Intermediate classes. The difficulties, of women students at this
stage are such greater because of their age and the time required to get accustomed to the change from
school to colleges conditions of life and instruction. To achieve this very desirable object, it is necessary
that more women's colleges with the necessary hostel accommodation should be established. Pursuant to
the policy enunciated in the report the Syndicate was granting permission for co-education only when
they were satisfied that the college had complied with the requisite conditions. It will thus be seen that the
restrictions imposed on the admission of girl students in the colleges are not the outcome of any policy of
discrimination against them as in the familiar cases of exclusion of the Coloured Races in America. The
report of the commission shows that the object of the University is to encourage higher studies among
women and that the regulations are intended to ensure a proper and healthy education in conditions of
co-education. The grounds for differential treatment of boys and girls are not political, but social. It is as
well to bear this aspect of the matter in mind in considering whether the directions given by the
University are discriminatory. 2. Now, turning to the facts of this case, in 1949 a new college called the
Mahatma Gandhi Memorial College was founded in the town of Udipi and affiliated to the University of
Madras. While granting affiliation, the Syndicate gave permission for the admission of only 10 girl
students in the Junior Intermediate class as a temporary measure for that year and directed that in
future no women students should be admitted without the special sanction of the syndicate. On 24-7-1951,
the petitioner Shantha Bai applied for admission to the Intermediate course in this college, but her
application was refused by the Principal on the ground that girl students would not be admitted,
Thereupon, she filed the petition out of which the present appeal arises for the issue of a writ of
mandamus against the Principal of the College to admit her to the Intermediate course. The first
respondent to this application was the University of Madras and the second, the Principal of the college.
The affidavit in support of the petition stated that the second respondent had refused to admit the
petitioner as a result of the directions given by the first respondent not to admit women into the college;
that those directions were opposed to Section 5(1) of the Madras University Act, 7 of 1923 and that they
were also repugnant to Article 15(1) of the Constitution, in that they discriminated against the applicant
on the ground of sex and therefore void. On these allegations it was prayed that a writ of mandamus be
issued directing the second respondent to admit the petitioner in the college. No relief was claimed against
the University of Madras, but its Joinder as the first respondent was obviously with a view to obtain a
Judicial determination in its presence that the directions issued by it art not valid. The second respondent
appeared by counsel, but did hot contest the application. The University of Madras filed a counter-
affidavit stating that the directions given by it were based on considerations of practical convenience and
were neither discriminatory nor unjust, that they were not opposed either to Section 15(1) of the Madras
University Act or Article 15(1) of the Constitution and that the matter was governed by Art 29 of the
Constitution and not by Article 15(1) that no right of the petitioner had been invaded and that the
application was liable to be dismissed. 3. The petition was heard by Subba Rao J. He overruled the
contention that the directions given by the University were in contravention of Section 5(1) of the Madras
University Act 7 of 1923 which so far as it is material is as follows:
No person shall be excluded from admission to any degree or course of study on the sole ground of sex,
race (creed, class, or political views.) He held that "admission to any degree or course of study" in Section
5(1) referred to admission to particular courses of studies such as Law, Medicine, Engineering and the
like and not to admission to colleges. He also held following the decision in -- 'King v. Benchers of
Lincoln's Inn', (1825) 107 E. R. 1277 (A), that no writ of mandamus could be granted to compel the
Principal to admit the petitioner Into the college. He was of the opinion that Article 29 did not exclude the
application of Article 15(1); that the directions given by the University were opposed to that Article as
discriminatory against the petitioner on the ground of sex and that they were accordingly void. In this
view and in view of the fact that the Principal did not oppose the application, Subba Rao J. directed the
issue of a mandamus to the second respondent to consider the application of the petitioner without
making any discrimination on the ground of sex. The University of Madras prefers this appeal against
this decision. 4. Three contentions have been urged on behalf of the appellant: (1) Article 15(1) prohibits
discrimination only by the State; the University of Madras is not a State and its directions are therefore
unaffected by the operation of Article 15(1), (2) The right of a citizen to get admission into an educational
institution is governed not by Article 15(1), but by Article 29 and that Article does not prohibit any
restriction based on the ground of sex. (3) The directions given by the University do not deny the right of
women to be admitted into colleges, but only regulates the exercise of that right and that having regard to
the nature of the right, the restrictions are reasonable and not discriminatory.
5. (1) On the first question. Article 15(1) enacts "The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them." This provision is directed only
against the State. The State is defined in Article 12 as including "The Government and Parliament of
India and the Government and the Legislature of each of the state and all local or other authorities within
the territory of India or under the control of ,the Government of India." The question is whether the
University can be held to be "local or other authority" as defined in Article 12. These words must be
construed 'ejusdem generis' with Government or Legislature and so construed can only mean authorities
exercising governmental functions. They would not Include persons natural or Juristic who cannot be
regarded as Instrumentalities of the Government. The University of Madras is a body corporate created
by Madras Act VII of 1923. It is not charged with the execution of any Governmental functions; Its
purpose is purely to promote education. Though Section 44 of the Act provides for financial contribution
by the local Government, the University is authorised to raise its own funds of income from fees,
endowments and the like. It is a State-aided institution, but it is not maintained by the State.
6. What is action by the State authority as distinguished from Individual action has, in America, come up
for consideration frequently in connection with the Fourteenth Amendment which prohibits States from
enacting certain classes of legislation. In the Civil Rights Cases, -- (1883) 27 Law Ed. 835 (B)', the
question arose whether bye-laws and rules framed by Railway companies and by proprietors of public
restaurants and hotels excluding the coloured races or limiting their rights to get accommodation were
within the prohibition enacted in the Fourteenth Amendment. In holding that they were outside the
purview of the Amendment, Bradley J. observed:
It is State action of a particular character that is prohibited. Individual invasion of individual rights is not
the subject-matter of the Amendment.
It may be possible to hold different opinions as to whether in a particular case the Act complained against
is that of the State or of its instrumentalities or not as to which see -- 'United States of America v. Classic',
(1941) 85 Law Ed. 1368 CO; the comment thereon of a learned writer M. Pekelis in "Law and Social
Action" at pages 106 and 107 & the later decision of the Supreme Court in --'Screws v. United States',
(1945) 89 Law Ed. 1495(D). But the principle that the Fourteenth Amendment prohibits only State action
is itself not open to argument. That is State action as distinguished from individual action was thus stated
by Strong J. in 'Ex parte', Commonwealth of Virgina' (1880) 25 Law Ed. 676 (E):
We have said the prohibitions of the 14th Amendment are addressed to the States .....They have reference
to actions of the political body denominated a State, by whatever instruments or in whatever modes that
action may be taken. A state acts by its legislative, its executive or its judicial authorities. It can act in no
other way. The constitutional provision therefore must mean that no agency of the State, or of the officers
or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal
protection of the laws. Whoever, by virtue of public position under a State Government, deprives another
of property, life or liberty without due process of law, or denies or takes away the equal protection of the
laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed
with the State's power his act is that of the State.
The question has also been considered in America with special reference to Universities. Where the
University is maintained by the State any regulation or law made by the University which is repugnant to
the 14th Amendment has been held to be unconstitutional and appropriate writs have been issued. Such
for example are the decisions in -- 'Missouri Ex rel Gaines v. Canada', (1939) 83 Law Ed. 208 (F), --
'Sipuel v. University of Oklahoma', (1948) 92 Law Ed. 247 (G), -- 'Sweatt v. Painter', (1950) 94 Law Ed.
1114 (H), -- Mclaurin v. Oklanoma S. Regents', (1950) 94 Law Ed. 1149 (D. But where the University is
not one maintained by the State, their regulations are not open to attack under the 14th Amendment
because such a University cannot be considered to be a State. A case of this kind arose in -- 'People Ex Rel
Tinkoff v. North Western University', (1948) 93 Law Ed. 383 (J). The North Western University was
incorporated by an Act of the Legislature of the State of Illinots in January 1851. It was not maintained
by the State, though it received aid from the State. Vide the decision in -- 'North Western University v.
People', (1879) 25 Law Ed. 387 (K), where the constitution of the University is set out. The University
reserved the right to reject any application for admission to it for any reason which it considered
adequate. An applicant who had been denied admission to the college filed a suit against the University to
compel it to admit him. In dismissing this action Judge Kiley observed:
Under its Charter the University had the power to adopt whatever rules it deemed necessary to the
proper' attainment of the University purpose."
An application to the Supreme Court for the issue of a writ of certiorari against this decision was
dismissed. Vide-- '(1948) 93 Law Ed. 383 (J)'. Commenting on this decision a learned American writer
Mr. Chambers, observes:
The outcome, no doubt, will be regarded as a strengthening of the ramparts defending the right of a
privately controlled educational institution to select its own students, free from State compulsion. The
way is open for the State to provide facilities for higher education for all qualified applicants at its own
State universities and colleges.
The distinction between State-maintained universities and State-aided universities has also been adopted
in several decisions pronounced by the State Courts in America. Thus in -- 'Norris v. Marjor & City
Council of Baltimore', 78 F. Supp. 451 (L), a rule prohibiting admission of Negroes in a private school
which received aid from the State, but was not maintained by it, was held not to violate the 14th
Amendment; whereas a similar provision in -- 'Kerr v. Enoch Pratt Free Library', 149 F. 2 d. 212 (M),
was held to be void as the school was maintained by the Local authorities (vide 62 Marward's Law
Review, pp. 126 to 128).
7. It will be abundantly clear from the provisions enacted in part 3. that the Indian Constitution has also
recognised the distinction between State-maintained institutions and State-aided institutions. Thus, while
Article 28(1) enacts that no religious instruction shall be provided in any educational institution wholly
maintained out of State funds, Article 28(3) provides that religious instruction might be given in
educational institutions recognised by the State or receiving aid out of State funds, but that no person
should be compelled to take part in such instructions. Article 29(2) also recognises that educational
institutions might be either state-maintained or State-aided. Adopting therefore the principles laid down
in the American authorities, it must be held that educational institutions will be within the purview of
Article 15(1), only if they are State-maintained and not otherwise; and that the regulations of the
University of Madras, which is state-aided & not State-maintained are not within the prohibition enacted
in Article 15(1).
8. (2)It is also urged on behalf of the appellant that the matter is governed not by Article 15(1), but by
Article 29(2) which runs as follows:
No citizen shall be denied admission into any educational institution maintained by the State or receiving
aid out of State funds on grounds only of religion, race, caste, language or any of them.
This Article does not prohibit refusal of admission to educational institutions on the ground of sex and if
that is the governing provision, then educational authorities are within their rights in declining to admit
the petitioner. The argument which found favour with Subba Rao J. was that Article 29(2) did not
expressly authorise any discrimination on the ground of sex, that it was only by implication that an
inference could be made that there could be an exclusion on the ground of sex, that no such implication
should be made as that would run counter to the clear language of Article 15(1) and that the omission to
specify sex as a ground of refusal in Article 29(2) might be explained on the ground that its inclusion
would conflict with Article 15(3) which saves special provisions made by the State for women and
children. Now, it will be seen that while Article 15(1) enacts a general principle. Article 29(2) deals with a
particular topic, viz., admission to educational institutions. If the principle generalia specialibus non
derogant is to apply, the controlling provision would be Article 29(2) and not 19(1) (15(1)?) It should also
be noted that the language of Article 29(2) is significantly different from that of Article 15(1). Thus as
pointed out by the learned Advocate General while Article 15(1) prohibits discrimination on the ground
'inter alia' of "place of birth" these words are omitted in Article 29(2). The omission is clearly deliberate
and there is a purpose behind it. A State might be minded to open an institution for the advancement of
knowledge in a particular region which might be backward and for carrying out this object it might
restrict admission into the institution to persons of the locality. If persons from other and more advanced
regions are to insist on being admitted and the restriction in favour of persons who belong to the locality
is to be rejected as inconsistent with Article 15(1), the result would be that persons in the locality might be
prevented for all times from improving their lot. It is to avoid such consequence that "place of birth"
which is included in Article 15(1) would appear to have been omitted in Article 29(2). In the same manner
the omission of "sex" in Article 29(2) would appear to be a deliberate departure from the language of
Article 15(1) and its object must have been to leave it to the educational authorities to make their own
rules suited to the conditions and not to force on them an obligation to admit women.
9. Some argument was addressed before us on the exact significance of Article 15(1) which enacts that
"Nothing in this Article shall prevent the State from making any special provision for women and
children". The true scope of Article 15(3) is that notwithstanding Article 15(1), it will be lawful for the
State to establish educational institutions solely for women and that the exclusion of men students from
such institutions would not contravene Article 15(1). That is not inconsistent with the authorities of
educational institutions not falling within Article 15(3) from being clothed with power to admit or exclude
women students from those institutions. The combined effect of both Articles 15(3) and 29(3) is that while
men students have no right of admission to women's colleges, the right of women to admission in other
colleges is a matter within the regulation of the authorities of these colleges. In -- 'Anjali v. State of West
Bengal', MANU/WB/0094/1952MANU/WB/0094/1952 : AIR1952Cal822 (N). Bose J. was of the view that
Article 29(2) would be controlled by Article 15(1). But on appeal, the learned Judges left the point open.
We are of opinion that Article 29(2) is a special Article and is the controlling provision when the question'
relates to the admission to colleges.
10. (3) The third contention urged in support of the appeal was that the directions given by the appellant
prescribing the conditions under which admission of women to colleges would be permitted could not be
said to be discriminatory against them on the ground of sex and that the American decisions which decide
that exclusion of Negroes from educational institutions is opposed to the 14th Amendment do not bear on
the point. In America the restrictions placed on the rights of Negros to receive education in State
Universities had a political origin dating back to the times when slavery had not been abolished. The 14th
Amendment was intended to confer on Negroes the same status and privileges as were enjoyed by other
citizens. But, notwithstanding this enactment, the Negroes continued to suffer under social inequalities.
The Southern States in particular enacted Laws segregating the Negroes in railways and restaurants and
excluding them from educational institutions intended for the Whites. These laws came to be upheld on
the ground that the equal protection of laws guaranteed by the 14th Amendment was "a pledge of the
protection of equal laws" and that the requirements of the statute were satisfied if provisions
substantially equal were made for the accommodation and education of the Coloured Races. Thus, in --
'Plessy v. Perguson', (1896) 41 Law Ed. 256 (O), it was held that railway regulations providing separate
accommodation for Coloured Races did not offend the 14th Amendment and that the Negroes would not
insist on sitting in the same carriage with the Whites. In -- 'Berea College v. Commonwealth of
Kentucky1, (1908) 53 Law Ed. 81 (P), it was held that a State regulation forbidding teaching to both
White and Coloured students at the same time and at the same place was valid. In -- 'Cong Lum v. Rice',
(1921) 72 Law Ed. 172 (Q), it was held that a regulation by which a Chinese girl was to receive education
in a school for coloured children in a neighbouring district, but not in the local school reserved for White
students, was valid. From 1938 there came a change in the perspective through which the question was
viewed. The theory that equal protection of laws meant only a pledge of equal laws and not identical laws
still stands. But the interpretation of what is an equal law has been liberalised so as to narrow the
distinction between equal laws and identical laws. Thus, in -- '(1939) 83 Law. Ed. 208 (P)' it was held that
there wag no substantial equality in a Negro student being required to attend college in another district,
while White students were admitted in a local institution. In -- '(1948) 92 Law. Ed. 247 (G)' it was held
that the provision of a separate college for Negro students could not be said to be substantially equal
where the college was not in existence and available at the same time as the college for Whites and that a
promise to start a college with equal facilities was not a ground for excluding the applicants from a
college which was .then in existence. In -- '(1950) 94 Law. Ed. 1114 (H)' it was further held that there was
no substantial equality when the new college had not the same facilities in the matter of variety of courses,
opportunity for specialisation, size of the library, and tradition and prestige as the college to which
admission was denied. In -- '(1950) 94 Law. Ed. 1149 (I)' it was decided that rules requiring Negro
students in a college to occupy separate seats In the class, to sit at designated tables in the Library and at
special tables hi the cafeteria specified for coloured students were in violation of the 14th Amendment as
denying equal protection. These authorities establish that it is a right of all students to be admitted to
educational institutions without distinction of colour and that it would be a discrimination to provide that
they should be accommodated in colleges situated in other places.
11. These decisions clearly have no bearing on the question that arises for determination in these
proceedings. As already mentioned, the Madras University never attempted to exclude women from
collegiate courses. The University Commission Report records with satisfaction that education among
women had made rapid strides. The problem it has had to tackle has been how to provide for the ever-
increasing demand on their part for higher education. There are not sufficient number of Women's
colleges to accommodate all these who went to receive higher education. Co-education has become
inevitable and unless that is properly controlled. It might result in evil and not good. It is for this reason
that the syndicate requires that colleges which seek permission to admit women students should provide
the necessary facilities for them. In fact there is no regulation refusing admission to women students;
those regulations are addressed to the colleges and it is the colleges that are (?) refused permissions to
admit women when they do not provide sufficient facilities. It is difficult to see how these regulations can
be regarded as discriminatory against women. These regulations stand on the same looting as other
regulations relating to the affiliation of colleges in particular courses which require that certain
conditions should be satisfied if sanction for opening such courses is to be granted. Thus, an application to
open science course might be refused on the ground that there is no laboratory. This clearly is no
discrimination. In the same manner in requiring that colleges should provide certain facilities for women
before they can be admitted, it cannot be said that there is any discrimination on the ground of sex.
12. Our conclusions are that the University of Madras is not a state as defined in Article 12 of the
Constitution and that its regulations are not subject to the prohibition enacted in Article 15(1); that
admission to colleges is regulated by Article 29(2) and that the regulations of the University requiring that
colleges should provide certain facilities for women before they could be admitted are not discriminatory
on the ground of sex. In the result, this appeal must be allowed and W. P. No. 341 of 1951 dismissed.
There will be no order as to costs.


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